Case Studies » Other Cases » Unspecified payment in respect of two appellants -from 2015 Annual Report (ref: 2015/22 & 2015/23)

Background: The appellants were each in receipt of named payments. In the context of a review of entitlement, and an investigation by a Social Welfare Inspector, a question arose as to cohabitation. The Inspector interviewed each of the appellants and submitted reports and accompanying documents for determination. The Deciding Officer made reference to the interviews conducted by the Social Welfare Inspector and concluded that each of the appellants had concealed a material fact, that is, that they were cohabiting with one another. Ultimately, it was concluded that both persons were disqualified for receipt of the named payments as they were cohabiting. A revised decision was made in each case, with reference to the provisions of Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, and overpayments were assessed. An appeal was made by both parties. In response to a request made by solicitors acting for each of the appellants, and with the approval of the Chief Appeals Officer, the appeals were heard together – with a separate report and decision completed in each case.

<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">Oral hearing: The appellants attended, and each was represented separately by a solicitor. The Social Welfare Inspector attended at the request of the Appeals Officer. The decision at issue in each case was outlined, as was the manner in which the Appeals Officer intended to proceed.

It was acknowledged that the second appellant resided at the address of the first appellant for some years. It was contended, however, that the parties had never cohabited within the meaning of the Social Welfare Acts and, in particular, that they had not been engaged in an intimate/sexual relationship at any time. It was submitted that they had been nothing but platonic friends, had separate bedrooms, that the first appellant had her own independent means, that she was not engaged to, nor did she have any intention of marrying the other person.

In support of the appeal, reference was made to a Court Judgment, dated 5 May 2015, In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309, where Baker J found [paras. 21, 77, 78, 79] that in order to be a cohabitant for purposes of the 2010 Act, a relationship must be more than one of mere friendship and must be or have been at some point sexually intimate.

Medical evidence was submitted outlining medical issues which prevented a sexually intimate relationship. It was also submitted on behalf of both appellants that in the report of his investigation of the two claims, the Social Welfare Inspector had stated that the appellants were co-resident.

Consideration: The Appeals Officer made reference to the provisions of the governing social welfare legislation. In particular reference was made to the definition of ‘Cohabitant’ which is defined in section 2(1) of the Social Welfare (Consolidation) Act, 2005, to mean a cohabitant within the meaning of section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, which provides:

– …a cohabitant is one of 2 adults (whether of the same or opposite sex) who live together in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

The Appeals Officer observed that, prior to 2010, the relevant section of the Act provided for disqualification where two people were cohabiting ‘as husband and wife’. In the cases at issue, the Appeals Officer noted that if cohabitation in an intimate and committed relationship was not established, it could not be contended that the appellants concealed a material fact and, accordingly, that each would retain an entitlement to the named payments and no overpayment would arise. In this regard, he considered that the Judgment of Baker J, IEHC 309, was critical in assessing the evidence in the cases at issue. He made reference to paragraphs 21, 77, 78, 79, 86 and 95 of the Judgment as being of particular relevance, one of which states:

Para 86 – “The Act offers no assistance as to what is meant by an intimate relationship, but having regard to s. 172(3) it is clear that the relationship must have been at some point in time a sexual relationship for intimacy to be found. The intimacy that is intended is a sexual intimacy and not merely the intimacy of a close friendship”.

The Appeals Officer noted from the evidence presented by the Department in the context of its review, which pre-dated the Court Judgment cited, that many of the interconnected elements to which Baker J had made reference were considered to be in place in this case. In Paragraph 95, for example, it is stated that:

The basis of a relationship involves a number of interconnected elements such as the degree of shared activities that persons enjoy, such as shared meals, especially evening meals and breakfast, shared activities, shared division of household chores and shared holidays…”

However, he had regard also to the medical evidence which confirmed that throughout the period at issue, the capacity of having an intimate relationship did not exist. On the basis of this evidence, and having regard to the unequivocal findings of Baker J [2015] IEHC 309, that a relationship must have been, at some point in time, a sexual relationship for intimacy to be found, he concluded that it had not been established that the appellants were cohabiting within the meaning of the governing legislation for the period since 2010 or, in the period prior to 2010, ‘as husband and wife’ within the meaning of the legislation which applied at the time. Accordingly, each of the appellants was entitled to the named payment during the period at issue and no overpayment applied.

Outcome: Appeal allowed.